This month we take an in-depth look at House Bill 16-1426. The purpose of this bill is to crack down on service animal fraud. House Bill 16-1426 passed and became Colorado law when the Governor signed the bill on June 10, 2016. The bill is entitled “An Act Concerning Intentional Misrepresentation of Entitlement to an Assistance Animal.” If you have been in the apartment industry for any length of time, you know that assistive animal fraud is rampant. Tenants’ desire to avoid pet related charges, i.e. deposits, fees, and rent, is on some level driving the fraud. More than ever, tenants claim their animal is an assistive animal to avoid paying these charges. Companion animal or emotional support animal is the most abused categories.

According to the legislative declaration, the goal of Colorado House Bill 16-1426 is to crack down on the problems associated with fraudulent service animal representations by making it a crime to intentionally misrepresent that an animal is a service animal, or that a person is disabled. Preventing or eliminating the increasing fraud associated with assistive animal requests is a worthy goal. Unfortunately, the new law is not likely to achieve this goal, has the potential to get landlords in hot water, and is problematic for other reasons as well. Accordingly, landlords should not change current complying operation procedures in response to this recently passed law.

A key thrust of the law is to impose requirements for “assistance animal” documentation. If approached by a tenant, the law places the burden of meeting the documentation requirements on “licensees”. The bill (in 3 separate sections) defines licensees as doctors, nurses, and a wide variety of mental health professionals. The new law requires three separate and nearly repetitive sections to address doctors, nurses, and mental health professionals because each group currently falls under separate statutory sections. Thus, the new law has to amend the three current statutory sections covering doctors, nurses, and mental health professionals.

When approached, licensees are required to make separate written findings that a patient has a disability and that the tenant’s need for an assistance animal is related to the tenant’s disability. The new law makes it a crime for any person to intentionally misrepresent the entitlement to an assistance animal, and to intentionally misrepresent that an animal in the person’s possession is a “service animal” or a “service animal in training”. However, the two criminal provisions of the law are vague and weak, and will not do much to deter assistive animal fraud or abuse.

Both criminal offenses are petty offenses that carry a whopping $25 fine for the first offense, and maximum $500 fine for third and subsequent offenses. While not imposing stiff sanctions for criminal activity, the law sets forth in great detail how tenants can have the record of their petty offense sealed by a District Court. Most importantly, in our opinion, the elements of the crimes are incoherent at best, and at worst, will be nearly impossible to establish. To be found guilty of intentional misrepresentation of entitlement to an assistance animal, a tenant would need to intentionally misrepresent the entitlement to the animal, have previously been given a warning that it is illegal to misrepresent the entitlement to an assistance animal, and the tenant must know either that the animal is not an assistance animal or that the tenant isn’t disabled.

The criminal portions of the law are problematic because the law requires the potential offenders to be warned in advance for there to be a crime. Warning a tenant or others about the criminal nature of falsely representing entitlement to an assistance animal or falsely representing that an animal is a service animal are both fraught with peril. Fair housing advocates would argue that warning folks creates a chilling effect that would intimidate legitimately disabled tenants from exercising their rights. In many instances, landlords and others may suspect an animal’s status or a person’s disability is bogus, but you never know until you have all the facts. Accusing somebody of lying (representing that their animal is a service dog when it’s not) because you have to warn them would make a bad situation worse if it turns out that the animal is a legitimate service animal.

Similarly, to the entitlement crime, to be found guilty of intentionally misrepresenting a service animal, a person has to intentionally misrepresent that the animal in their possession is their service animal. Given that both crimes (lying to have an animal approved as an assistance animal and lying that an animal is a service animal) require intent, it’s not much of leap to guess that anyone charged with these crimes will argue that they were “honestly mistaken” and therefore, they did not “intentionally misrepresent”. Overall, it’s safe to say that the government will not be building new roads or bridges with the fines collected for violation of this law.

Problems with defining and enforcing the criminal portions of the new law are only the beginning. The law is also not clear on what animals it applies to. Does it apply to service animals? Does it apply to emotional support animals? Or to both assistive animals or assistance animals? A service animal is an animal that performs a specific service, e.g. seeing eye dog, seizure dog, etc. An emotional support animal (ESA) also known as a companion animal does not perform a specific service, but rather provides emotional support, companionship, or generally alleviates disability-related symptoms. Together, the subset of service animals and the subset of ESAs make up the set of Assistive Animals or Assistance Animals. For fair housing purposes, there is no difference between a service animal and an emotional support animal.

In the legislative declaration provision, the new law commendably does recognize the two subsets of assistive animals (“service animals” and “emotional support animals” (also known as companion animals)). However, it appears that the law presumably and erroneously uses the expression “assistance animal” as a synonym for “service animal”. If this is the intent of the law, the reference is erroneous because assistive animal or assistance animal can be either a “service animal” or an “emotional support animal.”

Presumably, the intent is to cover only “service animals” because the legislative declaration makes it clear that the bill is designed to address “service animal” related fraud and other service animal issues. The legislative declaration does not indicate that the law is addressing emotional support animal-related issues. Accordingly, we can only conclude that the drafters used the term “assistance animal” to mean, “service animal” because service animals provide “assistance”. However, since ESAs are also a subset of “Assistive Animals” along with “service animals”, it would be very easy to argue that ESAs are covered by the law as well. The issue is further muddled by a provision defining an assistance animal as any animal that would be allowed as a reasonable accommodation under the FHA (obviously this would include ESAs). Overall, the new law is not clear as to what animals are covered.

When a tenant desires an “assistance animal”, the new law requires a doctor (the licensee) to make written findings. Specifically, the doctor must state in writing whether the patient has a disability, and if so, state separately in writing that the tenant’s need for the animal is related to the tenant’s disability. Alternatively, the doctor must make a written finding that there is insufficient information available to make a finding regarding tenant’s disability or the disability-related need for the animal. Conspicuously, the new law does not mention the obvious alternative of the doctor finding that the tenant isn’t disabled, or doesn’t have a disability-related need for the animal. Again, in addition to a doctor, the licensee (person providing the documentation) could be a nurse or a wide range of mental health providers.

This part of the new law (the part requiring written document/findings) is likely to be attractive to landlords. The two issues with any reasonable accommodation request are disability and need. What could be better than requiring the tenant to obtain written documentation? Not only written documentation, but documentation from a doctor, nurse, or mental health care provider that specifically requires a finding that both prongs of the reasonable accommodation test have been met. Ideally, every landlord would want this information on every animal-related reasonable accommodation request made. However, there is a little problem. It is called the Federal Fair Housing Act (“FHA”).

We never supported the Colorado law because we didn’t see how it could be reconciled with the FHA. Specifically, the FHA and subsequent regulations adopted by HUD govern reasonable accommodation requests made by tenants, including reasonable accommodations for assistive animals (service animals and ESAs). Legally, under federal preemption doctrine, federal law is supreme over contradicting state law. When it comes to fair housing, states can go further than the FHA, however, they cannot contradict or lessen the FHA through state law. The new law arguably contradicts the FHA in several ways.

Reasonable accommodations under federal law are governed by the FHA, HUD regulation, and court decisions. While not carrying the force of law, the HUD/DOJ 2004 Joint Statement on Reasonable Accommodations is heavily relied upon by courts and considered by most to be the final word on reasonable accommodations. The Joint Statement makes it clear that HUD’s stated goal is to simplify, to the greatest extent possible, the reasonable accommodation process, including what documentation can be required, when it can be required, and who can be the source of the documentation. For example, if a tenant’s disability is obvious, you cannot require the tenant to provide documentation regarding disability. As we frequently ask in fair housing classes, do you really need a doctor to tell you an individual in a wheelchair is disabled?

Accordingly, HUD made it clear, that in some cases, a landlord may not request any documentation (when disability and need for the accommodation are obvious). HUD has also made it clear that the source of the documentation doesn’t need to be a doctor or medical provider. Documentation can be provided by a peer support group, a non-medical service agency, or a reliable third party who is in a position to know about the individual’s disability. The documentation can even take the form of a credible statement provided by the tenant.

The new law recognizes the supremacy of the FHA in several ways. The law recognizes the supremacy of the FHA on these issues by stating a doctor is only required to make these findings “if approached”. By requiring the findings only if a tenant approaches a doctor with the request, the new law implicitly recognizes under the FHA that landlords cannot require tenants to provide documentation from a doctor or to have the documentation take any specific form. By requiring the licensees (doctors, nurses, and mental health professionals) to make findings, the new law attempts to achieve the worthy goal of having health care providers take these certifications seriously. Theoretically, it is beneficial to get medical health care providers to take disability-related animal requests seriously. However, our concern is that landlords will incorrectly interpret the new law to mean that every disability-related tenant request for an animal has to be in writing and has to be certified by a doctor.

Does the new law require doctors (licensees) to make written findings that a tenant is both disabled and the tenant’s need for the accommodation is related to the tenant’s disability? Yes, the law does require this. But again, only if the tenant “approaches” the doctor. However, a landlord cannot dictate or require that a tenant get a doctor’s note (approach a doctor). An even more problematic scenario is when the tenant provides a doctor’s note that doesn’t make the required statutory findings. The FHA does not require specific findings. Under the FHA, the tenant is only required to establish that the tenant is disabled (meets the definition of disability under the FHA), and has a disability-related need for an accommodation. A doctor’s letter stating that the tenant is disabled and needs the accommodation is almost always sufficient under the FHA. However, this may not be considered sufficient under the new Colorado law.

We certainly don’t want to see any landlord incur liability for housing discrimination under the FHA for following or misinterpreting the new Colorado law. Especially, when the obvious collision of this new Colorado law and the FHA is recognized by the statute itself. Specifically, the new Colorado law states that it “does not . . . limit the means by which a person with a disability may demonstrate, pursuant to state or federal law, that the person has a disability or that the person has a disability-related need for an assistance animal.”

HUD is aware of this bill but has not indicated whether it is going to take position. We wouldn’t be surprised if HUD came out against it. Long term, this new law is likely to be challenged based on federal preemption doctrine. If brought, a challenge to the new law is likely to be successful. While everyone is in favor (the bill did pass a democrat house, a republican senate, and was signed into law by a democrat governor) of curbing assistive animal abuse (mainly companion animal), a disjointed bill is not the answer. Reasonable accommodation requests involving assistive animals are complicated and are not adequately addressed by this new law. The new law raises more questions than it answers. While well intentioned, this new law has the potential to lead landlords down a bad road resulting in significant legal liability. Based on our ongoing education efforts, operationally it is difficult to get and keep teams trained on the current fair housing law. Accordingly, if your operational procedures efficiently and accurately deal with reasonable accommodation animal requests, don’t change them because of this new law.

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